The curious case of Julian Assange and the United Nations Working Group on Arbitrary Detention

In an astonishing report, the United Nations Working Group on Arbitrary Detention has accused Sweden and Britain of arbitrarily detaining WikiLeaks founder Julian Assange because of a sexual-assault investigation against him in Sweden.

To be sure, it's unknown whether he's guilty of the charges. Likewise, it's impossible to know whether Assange criminally conspired with US Army Private Chelsea Manning (then known as Bradley) to steal classified material, or whether Assange and Wikileaks simply published that material in a manner that should be protected by the First Amendment to the US Constitution.

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But what seems highly likely is that Assange's detention is anything but arbitrary – it's because of the investigation of serious crimes.

The report recites the basic facts: Swedish prosecutors began to investigate Assange in 2010 "based on allegations of sexual misconduct", which is a bit of an understatement because the charges were for rape. The prosecutors issued an international arrest warrant. Assange was detained by British authorities in Wandsworth Prison, and apparently held in isolation for 10 days. Then Assange was put under house arrest for 550 days. Given that he was a flight risk, home detention seems like a proportionate and humane response to the situation, not a rights violation.

Julian Assange speaks from the balcony of the Ecuadorian embassy late last week. Photo: Carl Court

In the meantime, Assange sought asylum from Ecuador – not on the grounds that he shouldn't be prosecuted for rape in Sweden, but on the speculative grounds that from Sweden he might be extradited to the US where he would be prosecuted for conspiring with Manning. He's been in the Ecuadorian Embassy in London ever since.

To be sure, Assange isn't under indictment in the US. His Ecuadorean asylum is thus a way for him to escape the sexual-assault charges in Sweden.

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So what's arbitrary about all this, according to the working group? Assange spent 10 days in prison, more in house arrest and is now in the Ecuadorian Embassy. But a legally legitimate arrest warrant was issued for him. And he was a flight risk. Under those circumstances, house arrest wasn't arbitrary, and was surely quite reasonable when compared with prison. His "detention" in the embassy is an attempt to avoid a valid warrant. Formally speaking, it probably isn't detention at all – and it's certainly not arbitrary.

The basis for the working group's conclusion is that "Sweden is obliged by applicable law and Convention obligations to recognise the asylum granted to Mr Assange, and no exceptions apply". The reason Sweden is supposed to recognise Ecuador's asylum offer is that, in the judgment of the working group, "Mr Assange faces a serious risk" of being extradited to the US.

What would happen to Assange in the US? According to the working group, all that matters is that according to Ecuador, Assange faces "a well-founded risk of political persecution and cruel, inhumane and degrading treatment".

So there's the complete logic of a working group's report: Assange might be charged with a crime in the US. Ecuador thinks charging him with violating national security law would amount to "political persecution" or worse. Therefore Sweden must give up on its claims to try him for rape, and Britain must ignore the Swedes' arrest warrant and let him leave the country.

Sweden responded to inquiries from the working group by explaining, very reasonably, that there was no extradition order before it. And if it had one, it would make sure it could extradite Assange to the US in a way that was consistent with its international obligations before it did so.

What's more, Sweden pointed out that international law doesn't recognise a right of diplomatic asylum in an embassy, like the one Assange claims. It added that no one thinks it's a good grounds for asylum for someone charged with a non-political crime such as rape.

Everybody should be highly sceptical of the idea that someone like Assange can avoid being investigated and tried for rape because he might conceivably be charged with a crime in the US.

All this is legally correct. So is the British government's explanation to the working group that it doesn't recognise diplomatic asylum, and that Assange's residency in the Ecuadorian Embassy to escape arrest itself violates British law.

Somewhat astonishingly, the working group says Sweden is wrong because it cannot "ignore the fact that there has been an elaborate evidential determination that Mr Assange faces a risk of persecution and cruel, inhuman and degrading treatment". But there hasn't been any such elaborate determination, unless you count the assertion by Ecuador.

Everybody should be highly sceptical of the idea that someone like Assange can avoid being investigated and tried for rape because he might conceivably be charged with a crime in the US. The working group report says not one word about the interests of the victims. That's shameful – especially for a body that's supposed to be part of the UN office that focuses on human rights.

The working group criticised Sweden for not bringing charges against Assange already. But a government should have the capacity to investigate in all lawful ways, including having the opportunity to question suspects. The reason Assange hasn't been charged is surely that he's been evading arrest. It's preposterous to criticise the Swedish prosecutors for not bringing or dismissing charges against him when he's been trying to avoid them.

The upshot is that the working group's focus on Assange as some sort of political prisoner is thoroughly unjustified. It cheapens genuine instances of arbitrary detention. Assange should be tried for rape in Sweden. If the US brings charges against him, he should be tried for those, too. If the First Amendment protects him against those charges, I'll be the first to argue that they shouldn't sustain. But Ecuador shouldn't be the court of last resort – and the UN shouldn't be involved in protecting him, either.

Noah Feldman is a columnist with Bloomberg and a professor of constitutional and international law at Harvard.